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02.25.10

Andrew Cuomo's Paterson Problem

New York Attorney General Andrew Cuomo is probing allegations about Gov. Paterson and a top aide. But Cuomo’s interest in Paterson’s job creates a serious appearance problem, legal experts say.

Beleaguered New York voters—disgusted by an ethical morass in Albany and alleged abuse of power by Governor David Paterson and his aides—now have a seamy new quandary to cope with:

How can one public official investigate another official whose job he dearly covets—and not risk a glaring conflict of interest?

The answer is: He can’t, said legal experts consulted Thursday by The Daily Beast.

“Given that Andrew Cuomo has his eyes on the prize, it’s a pretty basic conflict of interest,” Marc Fernich told me. “It’s unseemly.”

And yet that’s exactly what Attorney General Andrew Cuomo—who has raised a war chest estimated at $16 million for his still-undeclared gubernatorial campaign, and is expected to run against Paterson in the Democratic primary—is doing with his just-announced probe of the governor and the role of the state police in allegedly interfering with a domestic-violence complaint filed against Paterson’s close aide, David W. Johnson, by Johnson’s former live-in girlfriend.

“The governor has formally referred to this office a matter for investigation,” the attorney general said in a statement released today in the wake of The New York Times’ bombshell story, “and this office is proceeding to determine if criminal or other wrongdoing is involved.”

Eric Alterman: Will Paterson Go?

Lloyd Grove: Paterson on the Brink
Attorney Marc Fernich, a prominent New York criminal-defense lawyer, said Cuomo should promptly appoint a special prosecutor who can’t be influenced by the attorney general’s political interests and ambitions.

“Given that Andrew Cuomo has his eyes on the prize, it’s a pretty basic conflict of interest,” Fernich told me. “It’s unseemly. What Cuomo should do is appoint some sort of independent prosecutor.”

Manhattan lawyer Pery Krinsky, who frequently lectures on legal ethics, said Cuomo’s probe risks violating well-established guidelines for public officials against the appearance of impropriety.

“Whether or not an individual has officially announced his candidacy is inconsequential in my view—especially where the individual knows in his own mind that he is in fact running,” said Krinsky, who also urged Cuomo to appoint an independent prosecutor. “No matter if there are the best of intentions, there is no sufficient way to instill confidence in the public that there is a shield against the potential or actual conflict of interest in the investigation of Governor Paterson.”

State Republican Party Chairman Ed Cox agrees. “While Attorney General Cuomo may have the legal authority to conduct the investigation into allegations concerning Governor Paterson, the antagonism and politically charged relationship that exists between the two rivals greatly undermines the attorney general’s ability to objectively and credibly investigate this matter,” Cox said, in a statement published by the New York Daily News.

Meanwhile, Republican candidate Rick Lazio got his licks in today, issuing a press release demanding that Cuomo “come clean” on his alleged role in feeding damaging rumors about Paterson. “If Andrew Cuomo is going to be investigating this matter, then the people have a right to know whether he or any of his agents had a role in spreading these stories,” Lazio said.

The attorney general’s spokesman, Richard Bamberger, did not return repeated messages to his office and cellphone.

Lloyd Grove is editor at large for The Daily Beast. He is also a frequent contributor to New York magazine and was a contributing editor for Condé Nast Portfolio. He wrote a gossip column for the New York Daily News from 2003 to 2006. Prior to that, he wrote the Reliable Source column for the Washington Post, where he spent 23 years covering politics, the media, and other subjects.